Employers and employees are increasingly promoting themselves and networking through social media.

In a short space of time, LinkedIn has amassed almost 260 million members in more than 200 countries, in fact just this week LinkedIn saw its one millionth member in Ireland signing up.

As those familiar with LinkedIn will know, as you begin to add “connections” to your account, whether personal contacts or contacts you meet through work, LinkedIn stores in your account those contacts and their details.

One issue which is drawing some attention is that of ownership of these connections, particularly in relation to departing employees.

Recent cases in the UK and the US highlight some of the issues that LinkedIn is creating in the workplace. A recent decision of the English High Court in July (Whitmar Publications Limited v Gamage and others) begins to answer the question of connection ownership.

The defendants were three former employees of Whitmar who had left employment and set up a business competing with Whitmar.

The company alleged that its confidential information had been used unlawfully in setting up this competing business.

It sought from the High Court what is known as a “springboard” injunction and other “springboard” relief. These seek to prevent a former employee, who has acted unlawfully, from gaining a head start in competition with his former employer (for example, a departing employee taking confidential information with him/her to use it for his/her new employer’s benefit).

One of the defendants, a Ms Wright, had maintained a number of LinkedIn groups for Whitmar.

These accounts promoted its business and contained details of customers and contacts of Whitmar, but on leaving employment she refused to hand over the passwords or access details to these accounts.

The evidence revealed that after the defendants left Whitmar’s employment, the LinkedIn groups were accessed and appeared to have been used as the source of contact information for a press release advertising the new competing business.

Ms Wright claimed that she had maintained the Whitmar LinkedIn accounts as a “hobby” and that they were personal to her, and for that reason the information should be considered hers.

However, the English High Court determined that she had maintained the accounts as part of her employment duties.

There was therefore a strong case that the information in the LinkedIn accounts was the property of, and confidential to, Whitmar. The defendants were required to provide Whitmar with exclusive access to those LinkedIn accounts.

In a recent US case, Eagle v Edcomm, Dr Eagle, a former CEO of Edcomm, issued proceedings against Edcomm alleging unlawful use of her LinkedIn account by the company after the termination of her employment.

As CEO of Edcomm, Dr Eagle had set up a LinkedIn account which she had used not only to promote Edcomm’s services and products but also to promote and enhance her own professional reputation.

When her employment was terminated, Edcomm accessed her LinkedIn account and changed its password, effectively locking her out.

They then replaced her details with details of the newly-appointed interim CEO of the company but some information relating to Dr Eagle had not been fully deleted from the account.

It had been the policy for Edcomm not only to urge employees to create LinkedIn accounts but also to become involved in the account content.

Persuasive valueThe company developed employee policies covering online content. However, Edcomm did not require that employees have LinkedIn accounts and at no time did Edcomm pay for its employees’, including Dr Eagle’s, LinkedIn accounts.

The court noted that no policy had been adopted by the company to inform the employees that the LinkedIn accounts were the property of the employer.

The court found in favour of Dr Eagle and held that the company was not entitled to prevent her accessing her own account.

These decisions are not binding in Irish courts, but they may be of persuasive value.

Amongst the questions that have not yet been determined in Ireland is: what happens to LinkedIn accounts that are genuinely personal to departing employees (ie, where their employer has not required them to operate or maintain such accounts)?

For example, such a LinkedIn account would likely contain contact information for the employee’s personal contacts as well as details of those contacts that the employee has built up because of, and during, his/her employment.

If that employee leaves employment and joins a competitor, by then logging into his/her LinkedIn account, he/she will have immediate access to a list of contacts and contact details relating to what his/her previous employer may see as their “connections”.

Contractual provisionsUntil this question has been satisfactorily determined by the courts, employers should make clear in their employment contracts and social media policy that any information relating to contacts or customers remains confidential to the employer at all times and that any such information, whether contained in LinkedIn accounts or elsewhere, must be returned or deleted on termination of employment.

Such a provision should be tied in with the employer’s policies, procedures and contractual provisions relating to confidentiality in general, and if it is made a term of the employment contract it will give an employer the right to allege breach of contract and seek injunctive relief, if necessary.

Employers may also consider other strategies such as the use of post-termination “non-dealing” or “non-solicitation” restrictions.

Finally, data protection principles should also be considered when developing and implementing your social media policy.

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